Turner Construction Company v OC Iron Works, Inc.

Turner Constr. Co. v OC Iron Works, Inc. 2005 NYSlipOp 05392 June 23, 2005 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, August 24, 2005

Turner Construction Company, Respondent,
v
OC Iron Works, Inc., Appellant. (And a Third-Party Action.)

—[*1]

Order, Supreme Court, New York County (Ira Gammerman, J.H.O.), entered December 2, 2004, which, to the extent appealed from as limited by the briefs, granted plaintiff's motion for partial summary judgment on the issue of liability, unanimously affirmed, with costs.

Plaintiff's entitlement to partial summary judgment on liability was supported by undisputed facts and testimonial admissions. Defendant failed to establish the elements of adhesion in this commercial subcontract between sophisticated parties. There is no showing that the parties had any legal obligation to contract with one another (see Levine v Shell Oil Co., 28 NY2d 205, 213 [1971]), or that defendant had no right to walk away if it felt the terms were too onerous.

Questions as to the extent of damages were properly left for separate trial (see CPLR 3212 [c]; Nitti v Goodfellow, 256 AD2d 1082, 1083 [1998], lv dismissed 93 NY2d 999 [1999]).

We have considered defendant's remaining arguments and find them without merit. Concur—Buckley, P.J., Tom, Andrias, Sullivan and Sweeny, JJ.